Roman law: why is possession a fact rather than right?

Hi,

Can you please explain to me why in Roman law, 'possession' is described as a fact rather than a right? It seems to me that it should be considered a right as it is protected by the law e.g. by possessory interdicts.

Thanks

You are correct. Possession is a right not just a fact.

Short answer: Apply the maxim "ubi jus ibi remedium. Ubi remedium ibi jus".

Long answer: It is a fact in so far as possession (physical control) can be acquired by a wrongful act (e.g. furtum possessionis) but ownership is an absolute right in rem protected by the vindicatio.

However, in Republican Rome it was hard to prove ownership so, practically, possession was more important. Possession developed from the idea of physical control to one of legal power - that is, whoever had advantage of the possessory interdicts. Taking the Latin maxim above - when there is a right, there is a remedy; when there is a remedy, there is a right - the remedy of possessory interdicts indicates that possession is a right.

Good luck with mods.